FYI….

Rochester - The missing pieces in the sex-offender debate

Justice

State legislators trooped back to Albany for one day last week, primarily to try to iron out differences on a tough new sex-offender law. But despite the media attention before the special session, legislators failed once again to reach an agreement.

The law, which New York politicians have been haggling over for 13 years, is called a “civil confinement” law. It would permit the state to hold many sex offenders in psychiatric hospitals after they’ve served their prison sentence. The idea is popular with politicians: few crimes disturb the public more than those involving sex offenses.

The debate in the legislature isn’t whether offenders should be sent to psychiatric facilities, and it’s not about whether they should be confined again after they’ve served their time in prison. Instead, legislators are disagreeing about process. Governor Pataki and the Republican-controlled Senate want certain offenders sent directly to a specially designated facility after they leave prison. The Democratic-controlled Assembly wants a jury to help decide whether the offenders should be confined again.

While the legislature has been arguing over a civil-confinement law, Pataki has had 100 offenders sent to psychiatric hospitals after they completed their sentences. Twelve of them sued the state, saying the confinement violated their rights. And late last month, the state Court of Appeals agreed. (The remaining 88 prisoners have also sued, but their cases haven’t been heard.)

Eighteen states have laws permitting civil confinement. But critics say the laws aren’t the best way to protect the public — or to help sex offenders change their behavior. They may, in fact, result in confining people who aren’t likely to re-offend. And, the critics say, civil confinement will be expensive. The state could end up spending a huge amount of money that would be better spent on effective treatment.

A core issue is whether the offenders are mentally ill.The Supreme Court has ruled that civil confinement doesn’t constitute double jeopardy. But states must show that sex offenders are mentally ill before they can be involuntarily confined in a psychiatric hospital. Dr. David Barry, a clinical psychiatrist and associate professor at the University of Rochester, says there is a difference between offensive criminal behavior and mental illness.

Sex offenders, he says, have abnormal sexual desires, some of which are serious crimes. But Barry, like many professionals in the field, stops short of calling those abnormalities illnesses.

Sex offenders, he says, “are not mentally ill, and a state hospital is not the place for these people.”

Treatment for the mentally ill is not the same as treatment for sex offenders, says Barry. And, he says, it’s risky to confine sex offenders with mentally ill patients. “We have been concerned,” he says, “because some could harm a very vulnerable group of people in these facilities.”

Another core issue:whether the offenders will commit their crime again.

The serious nature of sex offenses can’t be ignored. “This isn’t like stealing a car,” says Richard Hamill, a researcher in Albany who has extensively examined the problem of predicting sex-offender recidivism. “These crimes often impact a person’s entire life, how they think and feel about themselves. There may be injuries involved.”

“And you can’t replace this like you can a car,” says Hamill. Some victims “will deal with this the rest of their lives,” he says.

But there’s more than one kind of sex offender. The common perception is that all sex offenders will commit their crime again after they’ve been released from prison. That perception is based on blurry, sometimes contradictory data, however.

Recidivism rates for sex offenders are actually lower than those of other types of criminal behavior, says Hamill.

“There are those that are quite unlikely to re-offend,” says Dr. David Barry. “Then there are those driven by strong, abnormal sexual compulsions. I’ve had them tell me that they can’t change because this is their sexuality. This is who they really are.”

In 1995, lawmakers attempted to differentiate among the types of offenders when it passed the New York Sex Offender Registration Act. The registry is designed to track offenders and let the public know where they live. And it is supposed to identify the people most likely to re-offend.

Under the 1995 law, sex offenders are assigned “risk levels” based on the likelihood that they’ll commit their crime again. Level 1 offenders are considered the least likely to re-offend, Level 3 the most likely.

The risk levels are assigned to sex offenders 60 days before they’re discharged from prison. The assignments are made by a five-member board, two who are members of the state parole board and three who are experts in “the field of psychology, behavior, and treatment of sex offenders,” according to the state’s Division of Criminal Justice Services. All five are state employees.

But the risk levels haven’t necessarily corresponded to the severity of the crime. For instance, a 17-year-old boy who gets his 16-year-old girlfriend pregnant could be declared a Level 2 or 3 rapist. A person found guilty of incest could be a Level 1 offender.

Nor do the risk-level assignments identify the most dangerous offenders, the critics say.